On July 8, 2016, the Supreme Court of Canada Released its decision R. v. Jordan, 2016 SCC 27. It was a close decision with a 5-4 majority written by Justices Moldaver, Karakatsanis and Brown.

The issue in the case was whether or not there was too much delay in the criminal proceedings against the accused. The Charter of Rights and Freedoms gives everyone the right to be tried within a reasonable time under section 11(b). This is a critical right in a fair justice system to prevent the government from intentionally dragging a case along while an accused is detained in custody. For Mr. Jordan, his case took 49.5 months (just over 4 years) to finish from the time when he was charged. The lower courts determined the delay was not unreasonable and denied Mr. Jordan's earlier applications for unreasonable delay.

Part of the problem with unreasonable delay is that the only remedy or the only way to fix/address it is by a judge entering a stay of proceedings. In other words, the judge decides to drop the charges. The judge cannot decide to, instead, reduce a sentence for unreasonable delay. That would be an improper and illegal remedy. In other situations, where your right to counsel or your right to be free from unreasonable search and seizure are violated, the judge must decide what evidence, if any, ought to be excluded from a trial. Even if evidence is obtained illegally, the judge may determine to still allow the evidence in. There is another Supreme Court of Canada case that deals with that issue called R. v. Grant, 2009 SCC 32. So, judges may feel that the burden for unreasonable delay should be very high because there is only one remedy and it is a significant one.

The Supreme Court of Canada concluded that courts have become complacent with delay, which may render the right to be free from unreasonable delay toothless. In the introduction at paragraph 4, the Court wrote:

Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11 (b). These difficulties have fostered a culture of complacency within the system towards delay.

The Supreme Court had problems with the previously existing approach and framework laid out in R. v. Morin, [1992] 1 S.C.R. 771. The Court outlined the framework from R. v. Morin at paragraph 30 and commented it was too unpredictable, too confusing, and too complex.

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay.

The Court introduced the new and governing approach at paragraph 46-47:

[46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [47] If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

However, any delays that are caused by the defence are subtracted from the delay period. It only makes sense that the defence does not work to intentionally delay the matter and then argue there has been excessive delay. At the same time, circumstances that lie outside the control of the Crown Attorney can also be subtracted from the delay period. If the total delay is below these ceilings, defence can still make an application for excessive delay if they meet two criteria:

it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

the case took markedly longer than it reasonably should have.

So, we have a new framework for looking at institutional and systemic delay in the criminal justice system in Canada. In Manitoba, there was a recent decision (that was before R. v. Jordan) that dealt with this exact issue of unreasonable delay. In R. v. Vandermeulen (M), 2015 MBCA 84, the Manitoba Court of Appeal heard a motion for delay after the accused was convicted after a trial. The Court agreed the delay was excessive and entered a stay of proceedings. Manitoba Justice appealed the decision but leave to the Supreme Court of Canada was denied.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.